Husseini v. York Regional Police Service, 2018 ONSC 283
CITATION: Husseini v. York Regional Police Service, 2018 ONSC 283
DIVISIONAL COURT FILE NO.: 108/17
DATE: 20180130
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, PATTILLO, and SHEARD JJ.
BETWEEN:
PC SALWA HUSSEINI Applicant
– and –
YORK REGIONAL POLICE SERVICE and ONTARIO CIVILIAN POLICE COMMISSION Respondents
COUNSEL:
Frank Addario and Samara Secter, counsel for Applicant
Jason D. Fraser, counsel for York Regional Police Service, Respondent
Benson Cowan and Matthew Peachey, counsel for Ontario Civilian Police Commission, Respondent
HEARD at Toronto: October 30, 2017
REASONS FOR DECISION
BY THE COURT:
[1] This is an application for judicial review of the decision of the Ontario Civilian Police Commission (“OCPC”) dated February 6, 2017.[^1] The OCPC dismissed the Applicant’s appeal from the decision of a Hearing Officer dated December 10, 2015,[^2] who conducted a discipline hearing pursuant to the Police Services Act, R.S.O. 1990, c. P.15 (“PSA”), in which he imposed a penalty that required the Applicant either to resign from the Respondent York Regional Police Service (“YRPS”) or face termination of her employment within seven days of the decision. For the reasons that follow, the application is dismissed.
The Hearing before the Tribunal
[2] The hearing was conducted on September 2, 3 and 10, 2015. The parties presented an Agreed Statement of Facts to the Hearing Officer that included the following:
a) The Applicant began her employment with YRP in June 2011. She had previously served with the Ottawa Police Service and had graduated from the Ontario Police College in November of 2008.
b) Between March 2013 and January 2014, the Applicant submitted 15 false massage therapy benefits claims and fraudulently received a total of $1,224.97 for these claims.
c) YRP members are entitled to extended health and dental benefits that are administered by the Sun Life Assurance Company of Canada (“Sun Life”) and fully funded by the Regional Municipality of York (“York Region”).
d) YRP members may register with Sun Life website to submit their claims online and have the reimbursement payments deposited directly into their bank accounts. Before submitting an e-claim, a YRP member must do the following: acknowledge Sun Life’s ability to check the accuracy of the information given and if asked, send original receipts and supporting documentation to Sun Life within 30 days of any request; certify to Sun Life that all services being claimed were received by the member or dependent; and confirm that the information provided is true and complete.
e) The last claim was submitted online on January 17, 2014 in the amount of $95.00. It was randomly selected by Sun Life as part of a routine audit. The Applicant was asked by Sun Life to submit a copy of the receipt for that claim. Sun Life noted that the amount on the receipt had been altered. As a result, the matter was referred to Sun Life’s Investigative Services Unit for verification of other e-claims made by PC Husseini. The investigator contacted the service providers named on the e-claims who confirmed that the services as claimed had not been rendered.
f) The Applicant contacted Sun Life on February 27, 2014 questioning why her January claim had not been paid. She was asked to confirm the service provider and indicated Fame International although the receipt she had previously submitted was from Argus Beauty Supply.
g) On April 25, 2014, when Sun Life asked the Applicant for copies of receipts for all other claims she had submitted, the Applicant admitted that all of the claims, except one or two, were false. She asked if she could repay the amounts falsely claimed.
h) Sun Life advised York Region’s Benefits Administrator of PC Husseini’s fraudulent claims and, on July 15, 2014, York Region notified the YRP Professional Standards Bureau.
i) The investigations by Sun Life and the Professional Standards Bureau revealed that, between March 14, 2013 and January 17, 2014, PC Husseini submitted 15 fraudulent benefits claims to Sun Life and that 14 of those claims resulted in a total of $1,224.97 being paid into her bank account by way of direct deposit. Sun Life did not make payment on the final claim that triggered the audit.
j) The Applicant was arrested in October 2014 and charged with two counts of fraud under $5,000 and two counts of uttering a forged document contrary to the Criminal Code. On February 19, 2015 the Applicant pleaded guilty to one count of fraud under $5,000. The remaining charges were withdrawn. Following a joint submission, the Applicant was granted a conditional discharge, placed on probation for one year and ordered to make restitution to York Region in the amount of $1,224.97, which she did.
[3] The Applicant was charged under the PSA with the following counts:
a) Between March 14, 2013 and January 17, 2014, Constable Husseini did commit Discreditable Conduct, in that she acted in a disorderly manner or in a manner prejudicial to the discipline or likely to bring discredit upon the reputation of the police force of which the officer is a member, by falsely submitting health benefit claims to Sun Life contrary to the Code of Conduct, Section 2 (1) (a) (xi).
b) Between March 4, 2013 and January 17, 2014, Constable Husseini did commit Deceit, in that she knowingly made a false statement in a record she falsely submitted health benefit claims to Sun Life, certifying the information to be true and complete, contrary to the Code of Conduct, Section 2 (1)(d)(i).
c) On January 27, 2014, Constable Husseini did commit Deceit, in that she knowingly made a false statement in a record, she purposely submitted an altered receipt to Sun Life to corroborate a pending claim for massage therapy, contrary to the Code of Conduct, Section 2(1)(d)(i).
[4] At the outset of the hearing on September 2, 2015, PC Husseini pleaded guilty to all counts and was found guilty on clear and convincing evidence of each count. The Hearing Officer heard evidence and submissions on September 2, 3 and 10, 2015.
[5] Superintendent Rouse, the Officer-in-Charge of Staff Services on behalf of YRPS, gave evidence as a representative of Senior Management on behalf of the prosecution. He testified with respect to the nature of the oath of office, the duties of a police officer as indicated in the PSA, the YRPS Vision, Mission and Values, including the impact of the misconduct by PC Husseini in relation to those values, and the Code of Professional Ethics. He testified that such misconduct erodes not only the public trust but also the trust of management towards the individual member and that he did not believe that PC Husseini had a further useful role within YRPS. He said that YRPS had had a total of 6 incidents of benefits fraud by employees, 3 sworn and 3 civilian members, and that deterrence is a significant factor that the organization has to take into consideration in determining how to prevent further incidents. As noted by the Hearing Officer, Superintendent Rouse said that “benefit fraud convictions can warrant dismissal, however, [Superintendent Rouse] acknowledges that each case must be looked at separately since each set of circumstances can be different”.
[6] In cross-examination, Superintendent Rouse acknowledged that there are officers who have committed misconduct or criminal offences and are given second chances to re-earn the trust of their employer. He agreed there were officers with criminal records who continued in the employ of various police services, and that all of these officers had breached their oaths, their duties under the PSA, and their Mission Statements with respect to accountability. He was unaware of any YRPS officer being dismissed for benefits fraud. He agreed that, recently, an officer with a benefits fraud conviction had maintained his employment in the YRPS. He also conceded that as of September 2015, he did not know of any cases where an officer’s discipline history, required to be disclosed in a McNeil report, had compromised a criminal trial.
[7] The Applicant gave evidence and was cross-examined and, as noted at page 32 of the decision, the Applicant made a statement to the Tribunal in which she apologized to the community and to her family; she stated that she had hit rock bottom and that her actions were motivated by desperation, not greed. She said that it would never happen again if given the opportunity to remain with YRPS.
[8] The Applicant’s counsel called three character witnesses: two constables with whom she had worked and Staff Sergeant David Trach. S/Sgt. Trach said that PC Husseini was always professional and an above average worker. She was used a lot by the platoon for translation purposes due to her Arabic language skills. He said he believed that she was popular and well-liked by her co-workers. He said he was aware of the issues facing PC Husseini but was not aware that there were 15 fraudulent claims or that the amount was $1200 or more.
[9] S/Sgt. Trach reviewed her performance appraisals and his involvement in one of them. He testified that there were no major issues or concerns with her performance and believed she was an integral part of the platoon. He said he would “take Salwa back tomorrow as she is valuable to me and to the organization”.
Decision of the Hearing Officer
[10] The Hearing Officer summarized in detail the position that each counsel had taken with respect to penalty. Counsel for YRPS asserted that dismissal was within the range of reasonable outcomes and was also the most appropriate disposition. On behalf of PC Husseini, her counsel took the position that demotion was also in the range of reasonable outcomes and would be consistent with three prior misconduct hearings, namely Mennie,[^3] Fraser,[^4] and Macdonald.[^5]
[11] The Hearing Officer made findings with respect to the evidence of the four witnesses including PC Husseini.
[12] The Hearing Office structured his analysis of the evidence in the context of the 13 factors established in Krug v. Ottawa Police Service,[^6] namely:
Public interest;
Seriousness of the misconduct;
Recognition of the seriousness of the misconduct;
Employment history;
Need for deterrence;
Ability to reform or rehabilitate the police officer;
Damage to the reputation of the police force;
Handicap and other relevant personal circumstances;
Effect on the police officer and police officer’s family;
Management approach to misconduct in question;
Consistency of disposition;
Financial loss resulting from unpaid interim administrative suspension; and
Effect of publicity.
[13] He also considered the three-part usefulness test[^7] that required him to examine the nature and seriousness of the misconduct, the ability to reform or rehabilitate the officer and the damage to the reputation of the police force that would occur should the officer remain on the force.
[14] At the conclusion of his 43 page decision, the Hearing Officer held as follows:
I have carefully weighed both the mitigating and aggravating circumstances, considered all relevant factors; all cases presented to me and all relevant disposition principles that make up the context of this matter.
I find, as a result of the evidence before me, that a record for two (2) counts of deceit and 1 count of discreditable conduct very difficult to get past and that Constable Husseini is no longer fit to remain an employee of the York Regional Police. Constable Husseini’s usefulness has been annulled, her conduct and decision making leads to a fundamental character flaw that I find impossible to rehabilitate.
[15] He made a decision pursuant to s. 85(1)(b) of the PSA allowing PC Husseini seven days to resign or face termination.
Decision of OCPC
[16] The Applicant appealed to the OCPC and asserted that the Hearing Officer erred in law in three ways: firstly, that he failed to properly apply the sentencing principles associated with the three-part “usefulness test”; secondly, that he failed to properly apply the sentencing principles of progressive discipline; and, thirdly that he imposed a penalty that was harsh and excessive.
[17] With respect to the Applicant’s first ground of appeal, that the Hearing Officer had failed to properly apply the “usefulness test”, the OCPC concluded that the Hearing Officer was fair in his review of the evidence presented on behalf of the Applicant, which included the financial stresses she faced as a result of a failed marriage, and a second failed relationship, and that it was open to the Hearing Officer on the evidence to conclude that the Applicant could not be rehabilitated.
[18] The OCPC found that, although different adjudicators might have reached different conclusions on the evidence, the Hearing Officer was best placed to consider the weight and import of the entirety of the record before him and it was not for the OCPC to re-weigh the consideration given by the Hearing Officer to the Applicant’s ability to reform or rehabilitate.
[19] The OCPC noted that the Applicant did acknowledge that her actions caused “some damage” to the reputation of YRPS and it found that the conclusion reached by the Hearing Officer as to the negative impact on the reputation of the YRPS was reasonable.
[20] On the Applicant’s second ground of appeal, the failure to apply the principles of progressive discipline and consistency of penalty, the OCPC noted that the Hearing Officer had reviewed a number of decisions, including the decisions in Macdonald, Mennie and Fraser. All three decisions dealt with benefits fraud that only resulted in demotion, not dismissal. The OCPC also considered the decision in Coleman,[^8] delivered after the decision in the Applicant’s case, in which the officer was demoted, not dismissed. The OCPC noted that while the Applicant conceded that benefits fraud may warrant dismissal in certain cases, she maintained that those four cases established the standard for consistency of penalties.
[21] On the third ground of appeal, that the Hearing Officer erred in law by imposing a penalty that was “harsh and excessive”, the OCPC concluded that the circumstances of the Applicant’s case had been fully canvassed by the Hearing Officer who considered each of the 13 factors before imposing the penalty. The OCPC agreed with the Hearing Officer that the Applicant’s “discreditable conduct” amounted to unethical conduct and reiterated that its function was not to re-weigh those factors.
[22] The OCPC considered cases in which the officer had been dismissed after having pleaded guilty to discreditable conduct. The OCPC agreed with the Hearing Officer that the actions of the Applicant were tantamount to theft from her employer and that her “discreditable conduct” amounted to unethical conduct. It concluded there was no valid rationale “to distinguish between benefits fraud situations from those of straightforward theft, when considering consistency of penalties.”
[23] The majority refused to intervene deciding that
• usefulness requires rehabilitation and it was open to the Hearing Officer to decide the Applicant had not been rehabilitated; (paragraph 30)
• dismissal was an available disposition; (paragraph 45) and
• the penalty was not harsh or excessive, insofar as it was not unreasonable. (paragraph 56)
[24] The OCPC concluded that the Hearing Officer had appropriately considered the relevant Krug factors to be weighed including the “usefulness test”. Furthermore, when read as a whole, the reasons of the Hearing Officer withstood the test of reasonableness as set out in Dunsmuir v. New Brunswick:[^9]
…reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process, but it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
[25] On that basis, the majority of the panel dismissed the appeal. The OCPC upheld the penalty imposed by the Hearing Officer.
[26] In a dissenting decision, one panel Member of the OCPC concluded that, while the Hearing Officer identified that consistency of disposition is a critical factor when dealing with the potential of demotion or dismissal, he failed to conduct a comparative analysis of the factual circumstances of the case with those in the factually similar cases of Macdonald, Mennie and Fraser. The dissenting Member noted that the facts in those cases were significantly similar to those of the Applicant in that each officer committed benefits fraud over a period of time; each was involved in personal relationship problems that resulted in financial and emotional stresses; each was charged criminally as well as with disciplinary offences; and each pleaded guilty to all charges, paid restitution, acknowledged the misconduct and expressed remorse. Each officer held the office of a First Class Constable and had no discipline record, although there were differences in the length of service, with the Applicant having the shortest record of service.
[27] The dissenting Member expressed the further view that the Hearing Officer’s decision omitted relevant evidence. For example, the Hearing Officer held that the Applicant’s performance was neither exemplary nor poor but was average thereby ignoring evidence that the Applicant had exceeded some standards. He pointed out that that omission called into question the conclusions reached by the Hearing Officer regarding the Applicant’s employment record. The dissenting Member noted that the Hearing Officer had made inconsistent findings, for example, with respect to whether the Applicant’s employment history was mitigating, aggravating or of minimal weight; and while the Hearing Officer found that the Applicant had learned from the experience, he nonetheless found that her conduct and decision-making led to a fundamental character flaw.
[28] Applying a “reasonableness” standard and accepting the premise that dismissal should not be imposed except in a case of the most egregious misconduct, the dissenting Member would have overturned the Hearing Officer’s decision and imposed a penalty of demotion from First Class Constable to Fourth Class Constable for a period of 12 months following which she would be eligible for promotion through the ranks in accordance with the promotional criteria of the Service. The dissenting Member would have also required the applicant to undertake 12 hours of financial counselling with a qualified financial consultant approved by the Service, such counselling to be completed within six months from the date of the disposition.
Issues raised on Judicial Review Application
[29] The Applicant seeks an order quashing the decision of the majority of the OCPC and upholding the decision of the dissenting Member.
[30] On her application for judicial review before this Court, the Applicant raises three issues:
What is the standard of review?
Did the OCPC unreasonably apply the relevant factor of consistency in penalty? and
Did the OCPC unreasonably conflate the availability of dismissal with the reasonableness of dismissal in the circumstances?
Issue #1: Standard of Review
[31] Given that issues #2 and #3 refer to findings of fact or of mixed fact and law, we agree with the submissions of all counsel that the standard of review to be applied by this Court to the decision of the OCPC is one of reasonableness. A similar standard applied to the OCPC in its review of the decision of the Hearing Officer. The Court of Appeal for Ontario in Ottawa Police Services v. Diafwila[^10] approved the standards of review for both, as set out in of Ontario Provincial Police v. Purbrick:[^11]
[15] The Commission correctly set out the relevant standard of review it was required to apply with respect to findings made by the Hearing Officer. The Commission found that a reasonableness standard applied to factual findings and a correctness standard applied to “the interpretation of the law.”
[16] The Commission set out several further principles relating to the standard of review:
[O]ur role on an appeal is not to second-guess the decision of the Hearing Officer, but rather to review the decision to determine whether the conclusions reached are reasonable, reflect a correct understanding and application of the law, are based upon clear and cogent evidence, and are articulated in a logical manner….
In certain limited cases it may be open to us to reach a different conclusion from the trier of fact. However, we should only intervene if there has been an error in principle or relevant sentencing factors have been ignored….
An appeal to the Commission is an appeal on the record. Unlike the trier of fact, we do not have the advantage of hearing and observing the witnesses as they testify. Deference must be accorded to the Hearing Officer’s findings, unless an examination of the record shows that the Hearing Officer’s conclusions cannot reasonably be supported by the evidence…
(Decision of the Commission, p. 22, paras. 40-42, citations omitted)
[17] It must be noted that it is not the role of the Divisional Court to review the decision of the Hearing Officer. It is not our role to determine if the Hearing Officer was correct, or even reasonable. Our sole focus is to determine whether the Commission, in its review of the Hearing Officer, acted reasonably: see Ontario Provincial Police v. Favretto, 2004 34173 (ON CA), [2004] O.J. No. 4248, 72 O.R. (3d) 681 (C.A.), at para. 50; leave to appeal refused [2004] S.C.C.A. No. 562. (Emphasis added)
Issue #2: Did the OCPC unreasonably apply the relevant factor of consistency in penalty?
Position of the Parties
[32] The Applicant submitted that all parties agreed that consistency in penalty is an important factor and the “earmark of fairness”, and that when comparing her case to the facts and circumstances in Fraser, Mennie, Labreche,[^12] Macdonald and Coleman, the penalty imposed upon the Applicant was harsh and inconsistent with the demotion penalties imposed on other officers.
[33] A central thrust of the Applicant’s argument is that, to properly apply the principle of consistency in penalty, her case should be compared only to those involving benefits fraud. Further, when comparing the facts in her case to those benefits fraud cases, she is the only officer who was dismissed; all others were demoted. The Applicant submits that the Hearing Officer and the OCPC improperly applied the principle of consistency when it considered cases in which the officer had committed a theft.
[34] The YRPS agrees that the principle of consistency of penalty is important, as did the majority at paragraph 36 of the decision in reference to White and Windsor Police Service.[^13] YRPS takes the position that the Applicant’s contentions are based on two erroneous assumptions: that the majority decision represents a departure from the principle of consistency of penalty and that the Applicant was in the same situation as the other police officers who were not ordered to resign as a result of their misconduct.
Analysis
[35] In keeping with the principles set out in Purbrick, the OCPC resisted second-guessing the decision of the Hearing Officer and properly gave deference to the assessment of and weight given by the Hearing Officer to the 13 factors.
[36] We agree that the OCPC properly concluded that no one of the 13 factors is paramount over the others and that the factors are intended to be flexible, contextual and may evolve over time.
[37] OCPC’s conclusion that there was no valid basis to distinguish between cases of benefits fraud and those of “straightforward theft” was reasonable on the facts: the Applicant had made deliberate, planned, and repeated submissions of false claims over an 11-month period, had attempted to cover-up by creating a false document, and had stopped only when caught. Similarly, the decision of the OCPC was reasonable in considering penalties imposed on officers who had committed theft, when applying the principle of consistency of penalty.
[38] The Applicant further supported her position that the OCPC failed to apply consistency in penalty by submitting that it attempted to justify the Hearing Officer’s departure from consistency of penalty by relying on the brevity of the Applicant’s employment with YRPS as an aggravating factor. The Applicant asserts that a short employment history is, at best, a neutral factor. Moreover, the OCPC underestimated the length and quality of the Applicant’s service, and ought to have treated her as a five-year officer, with an excellent record.
[39] In fact, the majority decision of the OCPC states only that the Applicant had worked for YRPS for less than two years when she began to steal from YRPS. That observation was directed to a number of the 13 factors including the “usefulness” test, or the ability to reform or rehabilitate the Applicant, and general deterrence. The OCPC properly gave deference to the findings of the Hearing Officer on how to weigh the good character evidence presented on behalf of the Applicant as against the evidence of Superintendent Rouse, that benefits fraud has become a real problem in YRPS and deterrence was important in view of the damage to the reputation of the YRPS. The latter evidence is not found in the benefits fraud cases relied upon by the Applicant, namely Mennie, Fraser and Macdonald.
[40] As she had before the OCPC, the Applicant submitted to this Court that the decision of the OCPC was unreasonable in accepting the characterization by the Hearing Officer of her employment record as average. However, it is neither the role of the OCPC nor of the Court to look at her Performance Appraisals and substitute its own conclusion as to the quality of her employment record. In accordance with its jurisdiction, the OCPC appropriately deferred to the findings of the Hearing Officer as to the quality of the Applicant’s service record. Similarly, the OCPC deferred to the findings of the Hearing Officer as to the Applicant’s ability to reform or to be rehabilitated. In any event, there was evidence on which the Hearing Officer could find that the Applicant’s performance could be described as average. We find no basis to interfere with those conclusions reached by the OCPC.
[41] The Applicant submitted that the facts in her case more closely resembled those in Macdonald, Mennie and Fraser, as she also suffered from depression and anxiety and asserts that her actions were situational and not “character defining”, as was concluded by the Hearing Officer.
[42] As stated above, the OCPC considered the reasons given by the Hearing Officer for reaching the conclusions that when faced with financial stresses, the Applicant did not seek out professional assistance or advice; did not consider bankruptcy; and did not seek financial help from friends or family. Indeed, the Hearing Officer concluded that her behaviour over an extended period was “antithetical to what is expected of a police officer” and that her misconduct amounted to a “flagrant abuse of her position, oath of office and duties as a police officer.” The OCPC properly gave deference to those findings and to the conclusion of the Hearing Officer that the Applicant’s actions were not situational but were character defining. We are satisfied that the decision of the OCPC was reasonable in that regard.
[43] The Applicant submitted that the OCPC erred when it concluded that “[i]f one were to blindly apply the consistency of penalty principle, the importance of which we acknowledge, police officers will have one free pass to falsely claiming benefits, then trying to cover up their actions by forging documents, without the threat of dismissal. That would erode public confidence in the discipline process.”
[44] In fact, read in context, those comments found at paragraph 51 of the decision of the majority speak to the need to consider all of the 13 factors, without giving any one of those factors greater priority over another. Before the Hearing Officer and the OCPC, the Applicant acknowledged that dismissal was within the range of penalties. To accept the Appellant’s argument that, although it is in the range of possible penalties, dismissal could never be an appropriate remedy for benefits fraud, would create the very ill complained of by the Applicant: namely, a restriction on the reasonable exercise of discretion in penalty.
[45] We are not persuaded that the decision of the majority unreasonably applied the factor of consistency in penalty.
Issue #3: Did the Majority of the OCPC unreasonably conflate the availability of dismissal with the reasonableness of dismissal in the circumstances?
Position of the Parties
[46] As indicated in paragraphs 47 to 63 of her factum, the Applicant takes the position that simply because the maximum penalty is available does not make the selection of that penalty reasonable in this case. The Applicant asserts that instead of reviewing the Hearing Officer’s decision, the OCPC unreasonably rubber-stamped the Hearing Officer’s conclusions that were unexplained and not grounded in the evidentiary record. In particular, the Applicant argues that the OCPC unreasonably relied on the Hearing Officer’s inconsistent findings regarding the Applicant’s rehabilitative potential and the OCPC unreasonably relied on the Hearing Officer’s decision that her usefulness as an officer was annulled.
[47] The Respondent takes the position that the OCPC did not “conflate availability of dismissal with the reasonableness of dismissal”. The majority may not have necessarily agreed with the decision to dismiss the Applicant. However, it was bound to apply the standard of review of reasonableness and in all of the circumstances the decision to dismiss was not unreasonable.
Analysis
[48] The Applicant argues that the Hearing Officer noted that the Applicant had taken steps toward rehabilitation; had taken responsibility and showed remorse; had cooperated fully and pled guilty at the earliest opportunity; had brought down her debt while on suspension, accepted responsibility and appeared remorseful; and had acted not out of greed but out of an attempt to “try to keep her head above water”. Yet the Hearing Officer inconsistently concluded that the Applicant’s conduct and decision-making “leads to a fundamental character flaw that [he found] impossible to rehabilitate”.
[49] The Applicant also argues that the Hearing Officer ignored relevant evidence relating to her future potential for service on the force. For example, the Applicant argues that the Hearing Officer unreasonably treated her responses to her marriage breakdown and abusive relationship as telling of her “character flaw”, despite the evidentiary record suggesting that this conduct was out of character.
[50] We do not agree that those findings are inconsistent or that the Hearing Officer ignored certain evidence. Rather, they are the product of the Hearing Officer’s analysis of all of the Applicant’s evidence that appears to have occupied most of the first day of the hearing during which he had the advantage of hearing and observing the witness and making findings as to credibility and to factual circumstances. We do not agree that the OCPC “rubber-stamped” the decision of the Hearing Officer. Indeed, at paragraphs 45 to 56, the OCPC noted that it was not to re-weigh the Hearing Officer’s analysis of the Krug factors: that the actions of the Applicant were tantamount to theft from her employer; that there is little difference conceptually between the theft in Walker and Peel Regional Police Service[^14] and the actions of the Applicant; that the reasons of the Hearing Officer withstand the test of reasonableness as enunciated in Dunsmuir; that the Hearing Officer “quite reasonably” highlighted certain of the factors that distinguished her situation from the cases relied on by the Applicant; and, while the majority may not necessarily agree with the decision to dismiss the Applicant, it could not conclude that in all of the circumstances the decision to do so was unreasonable.
[51] At the outset of the analysis, the majority referred to Karklins v. Toronto (City) Police Service[^15] where the Divisional Court adopted the description of the Commission’s role as follows:
The role of the Commission on a penalty is well established. Our function is not to second guess the Hearing Officer or substitute our opinion. Rather, it is to assess whether or not the Hearing Officer fairly and impartially applied the relevant dispositional principles to the case before him or her. We can only vary a penalty decision where there is a clear error in principle or relevant material facts are not considered. This is not something done lightly.
[52] We conclude that the majority of the OCPC was guided by that description of its role. The majority did not “rubber stamp” or disregard inconsistent findings. Nor did it re-weigh the Hearing Officer’s application of the evidence to the 13 factors. Rather, the OCPC held that there was no clear error in principle or failure to consider relevant material facts. In so doing, the decision of the majority fell within a range of possible acceptable outcomes and was therefore reasonable.
Disposition
[53] The application for judicial review is dismissed.
[54] The parties agreed that no costs should be awarded.
Kiteley J.
Pattillo J.
Sheard J.
Released: January 30, 2018
[^1]: 2017 4791 (ON CPC). [^2]: York Regional Police Service v. Husseini (Discipline Hearing) (10 December 2015). [^3]: Halton Regional Police v. Mennie (Discipline Hearing) (21 April 2015). [^4]: St. Thomas Police Service v. Fraser (Discipline Hearing) (30 April 2015). [^5]: York Regional Police Service v. Macdonald (Discipline Hearing) (16 January 2015). [^6]: 2003 85816 (ON CPC) at para. 69. [^7]: Guenette and Ottawa-Carleton Regional Police Service, 1998 27136 (ON CPC); Staff Sergeant William Hancock and the Ontario Provincial Police, 1995 15418 (ON CPC). [^8]: York Regional Police Service v. Coleman (Discipline Hearing) (9 June 2016). [^9]: 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47. [^10]: 2016 ONCA 627. [^11]: 2013 ONSC 2276 (Div. Ct.) at paras. 15-17. [^12]: Greater Sudbury Police Service v. Labreche (Discipline Hearing) (5 December 2016). [^13]: 2000 45060 (ON CPC). [^14]: 2000 45061 (ON CPC). [^15]: 2010 ONSC 747 (Div. Ct.) at para. 10.